Nuisances on Public Property and Public Ways

Overview

Nuisances on public property and rights of way present unique enforcement issues. Although cities and counties generally have more latitude to abate nuisances on public property or rights-of-way compared with private property, it is still important to follow applicable abatement procedures. The authority to abate a nuisance comes from the police power, which is referenced in common law as well as the state constitution in Article XI, section 11:

Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.

This page addresses the specific issues relating to nuisance abatement on public property and public rights-of-way. It summarizes common types of regulations and potential legal issues associated with each. As the page shows, jurisdictions have defined many different types of nuisances to regulate, from begging to roadway debris to obstructions in rights-of-way.

Statutes Authorizing Cities and Towns to Abate Nuisances

• For first-class cities, specific powers are enumerated under RCW 35.22.280(30)
• For second-class cities, specific powers are enumerated under RCW 35.23.440(10) 
• For code cities, RCW 35A.21.160 provides these entities with all of the powers which any city of any class may have
• For towns, power to regulate nuisances are established in RCW 35.27.410

Begging and Soliciting: Legal Overview and Examples of Codes

Ordinances regulating begging and soliciting have recently become a point of particular contention among municipalities throughout the country, including those in Washington. This is because many restrictions on begging are, in essence, restrictions on a type of speech and, thus, implicate the First Amendment. As such, these laws are scrutinized by the courts and must be well crafted to survive that scrutiny. 

Background on Begging and Soliciting Laws

Many municipalities have long had laws placing specific restrictions on begging or soliciting, such as laws restricting begging by major roads, within certain distances of outdoor eating areas or ATMs, or at night. Such laws have been defended on the grounds that they are "content-neutral" because they only restrict begging or soliciting in certain places or at certain times.

However, the United States Supreme Court decision Reed v. Town of Gilbert changed how these laws are scrutinized. While that case was not specifically about begging, it was about a different form of speech, signs, and its holding has been understood as applying to restrictions on speech in general. The Court in Reed held that a law is content-based anytime that it defines the regulated speech based on a “particular subject matter or by its function or purpose." Similar content-based restrictions are presumed to be unconstitutional, and a restriction is only upheld if the government can prove that a restriction furthers a "compelling interest and is narrowly tailored to achieve that interest."

Changes in Washington

The Washington Supreme Court signaled a shift in how it will assess restrictions on begging and soliciting in response to Reed. In City of Lakewood v. Willis, the court assessed the constitutionality of a Lakewood ordinance that prohibited begging at on and off ramps of state highways and at intersections of major arterial roads. The court was clear that it viewed Reed as applying to begging laws and held that the Lakewood ordinance was content-based because it only applied to speech with a particular purpose.

In coming to this conclusion, the Willis court also highlighted a number of other courts that had addressed begging laws and stated that it was joining those courts in its rejection of Lakewood’s arguments. This is noteworthy because the other cases it highlighted confronted various other begging restriction, some of which were much broader than the two that were examined by the Willis court. Browne v. City of Grand Junction, for instance, found a city ordinance unconstitutional that restricted begging at night within 20 feet of an ATM or bus stop, adjacent to an outdoor patio, or within a public parking facility.

Takeaway

While the Willis court only explicitly addressed restrictions on begging next to a highway off or on ramp and begging next to arterial roads, its opinion signaled that Reed’s reach may be much broader within Washington. Other laws that prohibit begging in specific locations or at certain times may also come under strict scrutiny. As such, municipalities should be very careful in how they craft any ordinance that seeks to restrict begging. 

Examples of Codes Regulating Begging and Soliciting

See below for an example of begging and solicitation ordinances currently in place in Washington. It is not clear whether these ordinances would be upheld under Reed and Willis and are only meant as an insight into how some municipalities are currently addressing begging.

• Covington Municipal Code Ch. 9.190 – Defines and prohibits aggressive solicitation using specific parameters
• Lakewood Municipal Code Ch. 9.04 – Aggressive Begging
• Pasco Municipal Code Ch. 9.35 – Prohibits panhandling upon the premises of any retail, commercial, or food service business in the city.

Pedestrian and Vehicular Interference

Narrowly drafted pedestrian and vehicular interference ordinances are not as problematic as begging prohibitions under the First Amendment because they regulate conduct (blocking users of the right-of-way) instead of expression. Some ordinances also include prohibitions on "aggressive begging," which often includes an element of intent to intimidate.    

Examples of Codes Regulating Pedestrian and Vehicular Interference

• DuPont Municipal Code Sec. 9.17.030 – Defines obstructing pedestrian or vehicular traffic as walking, standing, sitting, laying, or placing an object in such a manner as to block passage by another person or driver or to cause another person or driver to take evasive action to avoid physical contact. 
• Mount Vernon Municipal Code Sec. 9.21.045 – Prohibits entry into a “prohibited roadway” to deliver, receive, or exchange goods and services or distribute publications to the occupants of vehicles unless the vehicle is legally parked.  Definition of “prohibited roadway” includes medians but excludes all sidewalks and curbs 
• Pierce County Code Ch. 9.62 – Prohibits the solicitation of occupants of vehicles on public roadways
• Seattle Municipal Code Sec. 12A.12.015 – "Pedestrian interference" is defined as intentionally obstructing pedestrian or vehicular traffic or aggressively begging in public

Camping on Public Property

Many jurisdictions pass ordinances that make it illegal to camp overnight on public property.  While ordinances prohibiting camping on public property are valid, government entities should be mindful that individuals may have constitutional privacy rights in the contents of their campsite. See, e.g., U.S. v. Sandoval (9th Cir. 2000).

Examples of Codes that Prohibit Camping on Public Property

Some codes broadly prohibit camping on public property while others make a distinction between camping in public using a tent and camping in a parked RV, car, or trailer.

• Burlington Municipal Code Ch. 8.20 – Prohibits camping on public property except for in areas designated for camping.  Allows camping in recreational vehicles on private property for up to seven days without a permit
• Everett Municipal Code Ch. 8.56 – Prohibits camping in parks or streets, exempts parked recreational vehicles not being used as living quarters, and provides for permits
• Friday Harbor Municipal Code Sec. 10.04.050(E) – Prohibits parking of any vehicle on a street for the purpose of camping or sleeping
• Pierce County Code Ch. 8.96 – Prohibits any person to park or camp on any county property except in areas specifically designated and posted for those purposes
• Toppenish Municipal Code Sec. 8.14.030 – Prohibits use of public property for camping purposes or storage of personal property
• Vancouver Municipal Code Ch. 8.22 – Generally prohibits camping but provides a permit to allow camping for 14 calendar days in areas where adequate facilities are available
• Westport Municipal Code Ch. 6.24 – Prohibits camping on public property, including staying in a motor vehicle, camping trailer, or tent 

Cruising and Street Racing

A number of cities have adopted anti-cruising ordinances that prohibit individuals from repeatedly driving on certain streets at certain times. Not only have such ordinances been upheld by the courts, they have also been effective in some cities. Anti-cruising ordinances help to alleviate traffic congestion by dispersing the people who want to cruise, thus lessening the likelihood of violence and antisocial behavior. 

Examples of Codes that Prohibit Nuisances Related to Cruising and Street Racing

Care should be taken to avoid passage of an overly broad cruising ordinance that might invite a legal challenge. Not all cities have conditions justifying such ordinances.

• Kent Municipal Code Ch. 9.42 – Makes it illegal to attend unlawful street racing events and Ch. 9.43 prohibits persons from engaging in racing or unlawful race attendance within "No Racing Zones" as set forth in Sec 9.43.030
• Kirkland Municipal Code Ch. 12.29 – Designates “traffic congestion areas” and prohibits cruising in those areas
• Puyallup Municipal Code Ch. 10.70 – Provides for no-cruising areas and posting of signs
• Shoreline Ordinance No. 937 (2021) – Prohibits street racing and spectating of street racing; designates several streets and roads frequented by illegal racers as "No Racing Zones"
• Sumner Ordinance No. 2766 (2021) – Updates existing municipal code chapters expanding the definition of an unlawful race event and adding additional no racing zones to the designated Stay Out of Areas of Racing (SOAR)
• Yakima Municipal Code Ch. 9.25 – Offers criteria for determining no-cruising areas and provides for open-cruising events on specific dates during the year

Debris on Roadway

Under state law (RCW 46.61.655), vehicles carrying items must either be constructed or loaded to prevent any of its load from dropping, sifting, leaking, or otherwise escaping, or requires the vehicle be covered. This has also been adopted by reference in the Model Traffic Ordinance (see WAC 308-104-160(70)).

Examples of Codes that Prohibit Debris on Roadway

The codes below specifically regulate roadway debris.

• Cheney Municipal Code Ch. 12.40 – Covers transporting debris, depositing debris, and disposing of construction site debris on public property or private roads
• Marysville Municipal Code Ch. 12.40 – Requires cleanup of dirt, mud, rocks, vegetation, grease, oil or other foreign material or substance deposited, stored, abandoned, discharged, or spread on any public street, alley, sidewalk, or other public right-of-way
• Seattle Municipal Code
  • Sec. 11.74.075 – Prohibits drivers from dumping loads onto an alley or street without first obtaining a permit
  • Sec. 11.74.160 – Prohibits the operation of vehicles capable of dropping obstacles or debris
  • Sec. 11.74.170 – Requires drivers to clean up any debris that has fallen or escaped during transit 

Obstructions in Rights-of-Way

For many local governments, obstruction of public rights-of-way (e.g., roadways and sidewalks) can also be caused by crowds, private property of evicted tenants, and shopping carts.

Crowds​

Nuisances related to crowds can be defined as obstructions of access to public areas like streets or sidewalks.

Examples of Codes that Prohibit Nuisances Related to Crowds

• Auburn Municipal Code Ch. 12.32 – Prohibits sidewalk obstructions and reserves sidewalk use for pedestrians and bicycles
• Bellingham Municipal Code Sec. 10.28.020(S) – Prohibits property abutting public streets or sidewalks to be used in such a way that it causes large crowds of people to gather, obstructing traffic and free use of the streets or sidewalks
• Everett Municipal Code Ch. 13.12 – Allows for the following to be placed on sidewalks with city approval: trees/shrubs in containers, trash cans, telephone booths, special-event display merchandise, temporary restaurant seating, and mobile food carts
• Lewis County Code Ch. 8.35 – Defines any structure, device, or natural or artificial thing that threatens roadway, endangers persons, or obstructs vehicles as public nuisances
• Mercer Island Municipal Code Sec. 8.24.020(F)(H) – F defines sidewalks in need of repair as nuisances while H defines certain obstructions and excavations as nuisances and street/sidewalk obstruction more broadly
• Seattle Municipal Code Ch. 15.52 – Requires permits for events when anticipated crowds might obstruct the normal and customary use of parks or public places
• Spokane Municipal Code Ch. 12.02 – Prohibits obstruction caused by vegetation, sidewalks, fences, hedges, and trees, as well as unpermitted skywalks, underground utility vaults, and other street excavation work
• Tacoma Municipal Code Ch. 8.60 – Restricts unlawful assembly in public streets and sidewalks when the assembly obstructs, interferes, or prevents unobstructed use by the public

Personal Property from Evictions Placed on Public Property

RCW 59.18.312(5) gives landlords the ability to enter and take possession of any personal property evicted tenants have left behind after the execution of writs of restitution by a sheriff. In some cases, landlords can place tenants' belongings on the "nearest public property” (i.e., the right-of-way).

Examples of Codes Regulating Placement of Personal Property from Evictions

Generally, these codes establish a timeline by when personal belongings become nuisances that require abatement, allowing evicted tenants sufficient time to retrieve their items.

• Lewis County Code Sec. 1.22.040 – Provides evicted tenants 24-hour notice to remove property before it is deemed a nuisance. Landlord has 48 hours from notice to remove property or county abates nuisance and bills costs to landlord
• Kitsap County Code Sec. 9.56.090 – Provides evicted tenant 24-hour notice to remove property before property is deemed a nuisance
• Tacoma Municipal Code Sec. 8.30.055 – Covers all abandoned property on private property and public right-of-way, including evictions, and provides 48 hours to remove it before city abates it

Abandoned Shopping Carts

State law prohibits individuals from removing shopping carts from parking areas of retail establishments (RCW 9A.56.270).

Examples of Codes that Prohibit Abandoned Shopping Carts

The following codes provide further regulation on shopping cart containment and removal of abandoned carts.

• Auburn Municipal Code Ch. 8.18 – Requires shopping carts to have permanent signs identifying owners and provides method of notification of owner; also provides for disposition of carts if not claimed with 14 days
• Bellevue Municipal Code Ch. 9.28 – Makes removing shopping carts without permission violations and provides penalties
• Federal Way Ordinance No. 22-943 (2022) – Declares abandoned shopping carts on public or private property to be nuisances. Requires shopping carts to have identification signs; establishes process for city to impound abandoned shopping carts and charge fees to cart owners
• Issaquah Ordinance No. 2967 (2022) – Declares abandoned shopping carts to be nuisances. Carts must have identification signs; establishes process for city to return carts. Owners subject to frequent losses are required to develop containment/retrieval plans. Exempts businesses with 15 or fewer carts
• Renton Municipal Code Ch. 6-27 – Requires owners who provide shopping carts to develop, implement, and comply with provisions of written Shopping Cart Containment and Retrieval Plan; provides exemptions
• Yakima Municipal Code Ch. 6.27 – Requires identification of carts, provides retrieval procedures (may require fees), and includes disposal procedures if cart not claimed within 7 days